Custody & Access
In cases involving custody access and care, a balancing of state interests and private interests may arise. The State must balance those rights where they conflict. Each parent and, in some cases, other persons have a right to respect where their family ties with the child are the subject of the proceedings.
The child has the right to respect for his family life. The best interests of the child may require removal from parents on the state has a duty to protect the child from sexual, emotional and physical abuse.
The European Court does not review the findings of facts and decisions of domestic courts readily in these matters, which are dependent on particular facts and circumstances. It considers this sufficiency of reasons given and the fairness of the procedure involved.
The degree of appreciation will depend on the particular circumstances. The emergency taking of a child into care will involve a wider margin of appreciation than a decision on the child’s long-term removal from parents and a complete cutting of ties; Ageyevy v. Russia.
N.Ts.v. Georgia concerned proceedings for the return of three young boys – who had been living with their maternal family since their mother’s death – to their father. The first applicant maintained in particular that the national authorities had failed to thoroughly assess the best interests of her nephews and that the proceedings had been procedurally flawed.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the boys had not been adequately represented before the domestic courts, in particular as the functions and powers of the domestic authority designated to represent them had not been clearly defined and the courts had not considered hearing the oldest of the boys in person. Moreover, the courts had made an inadequate assessment of the boys’ best interests, which did not take their emotional state of mind into consideration.
In Vojnity v. Hungary, the applicant’s right of access to a son was withdrawn on the basis of religious belief. This breached Article 14 and Article 8. The court did not accept the state’s argument based on the threat to the child’s psychological health from proselytism and the state’s opinion that the applicant’s participation in the child’s life is harmful. It concluded there was no convincing evidence to substantiate a risk of actual harm as opposed to mere discomfort, embarrassment and unease, which the child might have experienced on account of the parent applicant’s aim to transmit his religious belief.
V.D. and Others v. Russia concerned a child, who was cared for by a foster mother, the first applicant in the case, for nine years and was then returned to his biological parents. The foster mother and her remaining children complained about the Russian courts’ decisions to return the child to his parents, to terminate the first applicant’s guardianship rights and to deny them all access to the child.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention owing to the order by the domestic courts to remove the child from his foster mother and return him to his biological parents and a violation of Article 8 of the Convention because of the decision to deny the foster family any subsequent contact with the child. formed close ties with the first applicant and her remaining children. In this regard, the Court noted that the courts’ decision had been based solely on an application of Russia’s legislation on contact rights, which was inflexible and did not take account of varying family situations. The domestic courts had therefore not carried out the required assessment of the individual circumstances of the case.
Child Care & Removal
An initial care decision may be of an emergency nature. A delay may constitute a breach of the right to respect for family life. The failure to deal diligently with the applicant’s request for visitations in itself breached the duty.
States are expected to examine the position from time to time in the extreme circumstances of child removal to see whether there has been any improvement in the family situation. This is particularly so as the prospect of family re-unity may be diminished with time, and the relationship with a biological child may be progressively weakened and harder to reconstruct.
Where a care order is given effect in a manner which disperses children more than necessary and makes family reunification more difficult, there may be a breach of the state’s duty, Olsson v. Sweden. Similarly, where visitations are not practicable, there may be a breach of the Convention rights.
In extreme cases, such as taking a child from a mother at birth due to evidence of psychotic illness, there was a breach of the Convention as alternatives were not considered; A& T v. Finland. If there is evidence of improvement in the health position, the arrangement should be capable of re-examination and assessment in light of the positive duty to facilitate family life.
In RK & AK v. United Kingdom, a child of parents with little English was taken into care after attending hospital with a broken arm. The authorities became convinced that the injury was not accidental. It later emerged that the child suffered from a brittle bone condition which was likely to be the cause. The court held there had been no violation in the original care order as mistaken assessments in themselves do not render the measures incompatible with the Convention.
In A.K. and L. v. Croatia, the applicant had been divested of parental rights in the context of care proceedings. She argued that she was incapable of participating in or understanding the proceedings. The court emphasised the importance of procedural safeguards. The court emphasised the importance of taking into account the views and interests of the natural parents. They must be made known and duly considered. Failure to do so may constitute a failure to respect family life.
In C v. United Kingdom, a care and placement order was challenged. The court indicated in seeking to identify the best interests of a child in assessing the necessity of any proposed measure in the context of placement, the domestic court must demonstrate that it has had regard to the age, maturity and ascertained wishes of the child, the likely effect on the child if ceasing to be a member of the original family and the relationship the child has with relatives.
In Sommerfeld v. Germany, the majority of judges did not consider it necessary to obtain a psychological report where views had been expressed by children at the age of 10, 11 and 13. Three dissenting judges considered psychological evidence necessary in these circumstances.
In Sneersome & Kampenella v. Italy, the applicant challenged the decision of Italian courts to return his son to Latvia, being against his best interests and in breach of international and Latvian Law. The court emphasised, as in the Neulinger case, that the key issue was whether a fair balance between the competing interests of the child, parents and the public interest had been struck.
In Neulinger and Shuruk v. Switzerland, the applicant abducted the child from Israel to Switzerland. The court upheld the decision of the domestic court that the return of the child to Israel would not be in the child’s best interests.
The child’s interest is a primary consideration and was primarily to be considered to be the right to have his ties with his family maintained unless it is proved that the ties are undesirable and to be allowed to develop in a sound environment. The court concluded that the return was not what was necessary in a democratic society. The child and father had no language in common. He had never lived separate from his mother and his mother was unable to move to Italy.
In Shaw v. Hungary, a complaint was made by the applicant that the respondent authorities did not take sufficient matters to ensure reuniting of the applicant with his daughter after abduction to France.
R.B. v. Estonia 2021 concerned the failure to conduct an effective criminal investigation into the applicant’s allegations of sexual abuse by her father. The applicant was about four and a half years old at the relevant time. Her complaint concerned procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform her of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of her father on procedural grounds.
The Court held that there had been significant flaws in the domestic authorities’ procedural response to the applicant’s allegation of rape and sexual abuse by her father, which had not sufficiently taken into account her particular vulnerability and corresponding needs as a young child so as to afford her effective protection as the alleged victim of sexual crimes. Accordingly, without expressing an opinion on the guilt of the accused, the Court concluded that the manner in which the criminal-law mechanisms as a whole had been implemented in the present case, resulting in the disposal of the case on procedural grounds, had been defective to the point of constituting a violation of the respondent State’s positive obligations under Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the Convention.